
C!ass__^tJiM. 
Book • ^yy 



1 



CORRESPONDENCE 



RELATIVE TO THE CASE OF 



MESSRS. MASON KM) SEIDELL 



E 



CORRESPONDENCE. 






Mr. Seward to Mr. Adams. 
[Extract J 



Dkpartmrnt of State, 
Washington, Novcmher 30, 1861. 

Sir: Your confidential note of the 15tli of November, not marked as a des- 
patcli, lia8 been submitted to the President, and I hasten to reply to it in time 
for the Wednesday's mail. 

No minister ever spoke or acted more wisely m a crisis which excited deep 
public solicitude than you did on the occasion of the lord mayor's dinner. We 
are impressed very favorably by Lord Palmerston's conversation with you. You 
spoke the simple fact when you told him that the life of this insurrection is sus- 
tained by its hopes of recognition in Great Britain and in France. It would 
perish in ninety days if those hopes should cease. I have never for a moment 
believed that such a recognition could take place Avithout producing immediately 
a war between the United States and all the recognizing powers. I have not 
supposed it possible that the British government coidd fail to see this ; and at 
the same time I have sincerely believed the British government must, in its in- 
most heart, be as averse from such a war as I know this government is. 

I am sure that this government has carefully avoided giving any cause of 
offence or irritation to Great Britain. But it has seemed to me that the British 
government has been inattentive to the currents that seemed to be bringing the 
two countries into collision. * * * * * * 

I infer from Lord Palmerston's remark that the British government is noAv 
awake to the impoitance of averting possiljle conflict, and disposed to confer and 
act with earnestness to that end. If so, we are disposed to meet them in the 
same spirit, as a nation chiefly of British lineage, sentiments, and sympathies — 
a civilized and humane nation — a Christian ])eople. 

Since that conversation was held Captain Wilkes, in the steamer San Jacinto, 
has boarded a British colonial steamer and taken from her deck two insurgents 
Avho were proceeding to Europe on an errand of treason against their own coun- 
try. This is a new incident, unknown to and unforeseen, at least in its circum- 
stances, by Lord Palmerston. It is to be met and disposed of by the two gov- 
ernments, if possible, in the spirit to which I have adverted. Lord Lyons has 
prudently refrained from opening the subject to me, as, I presume, waiting- 
instructions from home. We have done nothing on the subject to anticipate 
the discussion, and we have not furnished you with any explanations. We 
adhere to that course now, because we think it more prudent that the ground 
taken by the British government should be first made known to us here, and 
that the discussion, if there must be one, shall be had here. It is proper, how- 
ever, that you should know one fact in the case, without indicating that we 
attach much importance to it, namely, that, in the capture of Messrs. ^lason 
and Slidell on board a British vessel. Captain Wilkes having acted without any 
instructions from the government, the subject is therefore free from the embar- 
rassment which might have resulted if the act had been specially directed by us. i^ 



2 CORRESPONDENCE. 

1 trust that tlie British government -will consider the suhject in a friendly- 
temper, and it may expect the best disposition on the part of this government. 

Although this is a confidential note, I shall not object to your reading it to 
Earl Russell and Lord Palmerston if you deem it expedient. 
I am, sir, your obedient servant, 

WILLIAM H. SEWARD. 
Charles Francis Adams, Esq^., Sfc, S^c, Sfc. 



Earl Rusxcll to Lord Lt/ons. 

Foreign Office, Novemher 30, 1861. 

MvLoRD: Intelligence of a very grave nature has reached her Majesty's 
government. 

This intelligence was conveyed officially to the knowledge of the admiralty 
by Commander Williams, agent for mails on board the contract steamer Trent. 
I It appears from the letter of Commander Williams, dated "Royal Mail Con- 
I tract Packet Trent, at sea, November 9," that the Trent left Havana on 
I the 7th instant, with her Majesty's mails for England, having on board nu- 
( merous passengers. Commander Williams states that shortly after noon on the 
8th a steamer having the appeai-ance of a man-of-war, but not showing colors, 
was observed ahead. On nearing her at 1.15 p. m. she fired a round shot from 
her pivot-gun across the bows of the Trent, and showed American colors. 
While the Trent Avas approaching her sloAvly the American vessel discharged 
a shell across the boAvs of the Trent, exploding half a cable's length ahead of 
her. The Trent then stopped, and an officer Avith a large armed guard of ma- 
rines boarded her. The officer demanded a list of the passengers ; and, com- 
pliance Avitli this demand l)eing refused, the officer said he had orders to arrest 
Messrs. Mason, Slidell, McFarland, and Eustis, and that he had sure information 
of their being passengers in the Trent. While some parley was going on upon 
this matter, Mr. Slidell stepped forAvard and told the American officer that the 
four persons he had named were then standing before him. The commander of 
the Trent and Commander Williams protested against the act of taking by force 
out of the Trent these four passengers, then inider the protection of the British 
flag. But the San Jacinto was at that time only two hundred yards from the 
Trent, her ship's company at quarters, her ports open, and tompions out. 
Resistance was therefore out of the question, and the four gentlemen before 
named AA^ere foi-cibly taken out of the ship. A further demand was made that 
the commander of the Trent should proceed on board the San Jacinto, but he 
said he Avould not go unless forcibly compelled likcAvise, and this demand was 
not insisted upon. 

It thus appears that certain individuals have been forcibly taken from on board 
>^ a British vessel, the ship of a neutral poAver, while such vessel was pursuing a 
laAvful and innocent Aoyage — an act of violence Avhicli was an affront to the 
British flag and a violation of international law. 

Her Majesty's government, bearing in mind the friendly relations Avhich have 
long subsisted betAveen Great Britain and the United States, are willing to be- 
lieve that the United States naval officer who committed the aggression was not 
acting in compliance with any authority from his government, or that if he con- 
ceived himself to be so authorized he greatly misunderstood the instructions 
^ which he had received. For the goA^erinnent of the L'nited States must be fully 
awaie that the British government could not allow such an affront to the national 
honor to pass Avithout full reparation, and her Majesty's government are unwil- 
ling to believe that it could be the deliberate intention of the government of the 



CORRESPONDENCE. 3 

United States unnecessarily to force into discussion between tlie two govern- 
Tiients a question of so grave a character, and with regard to which the whole 
British nation would be sure to entertain such unanimity of feeling. 

Her Majesty's government, therefore, trust that when this matter shall have 
been brought under the consideration of the government of the United States 
that government will, of its own accord, offer to the British government such 
redress as alone could satisfy the British nation, namely, the liberation of the 
four gentlemen and their delivery to your lordship, in order that they may again 
be placed under British protection, and a suitable apology for the aggression 
which has been committed. 

Should these terms not be offered by Mr. Seward you will propose them to 
him. 

You are at liberty to read this despatch to the Secretary of State, and, if he 
shall desire it, you will give him a copy of it. 
I am, &c., 

RUSSELL. 

The Lord Lyons, K. C. B., S^v., S^c., Sfc. 



Mr. Seward to Lord Lyons. 

Department of State, 
Washington, December 26, 1861. 

My Lord : Earl Russell's despatch of November the 30th, a copy of which 
you have left with me at my request, is of the following effect, namely : 

That a letter of Commander Williams, dated Royal Mail Contract Packet- 
boat Trent, at sea, November 9th, states that that vessel left Havana on the 7th 
of November, with her Majesty's mails for England, having on board niunerous 
passengers. Shortly after noon, on the 8th of November, the United States 
war steamer San Jacinto, Captain Wilkes, not showing colors, was observed ahead. 
That steamei*, on being neared by the Trent, at one o'clock fifteen minutes in the 
afternoon, fired a round shot from a pivot-gun across her boAvs, and showed 
American colors. While the Trent Avas approaching slowly towards the San 
Jacinto she discharged a shell across the Trent's bows, which exploded at half 
a cable's length before her. The Trent then stopped, and an officer -with a 
large armed guard of marines boarded her. The officer said he had orders to 
arrest Messrs. Mason, Slidell, McFarland, and Eustis, and had sure information 
that they were passengers in the Trent. While some parley was going on upon 
this matter, Mr. Slidell stepped forward and said to the American otiicer that 
the four persons he had named were standing before him. The commander of 
the Trent and Commander Williams protested against the act of taking those 
four passengers out of the Trent, they then being under the protection of the 
British flag. But the San Jacinto M-as at this time only two hundred yards 
distant, her ship's company at quarters, her ports open and tompions out, and 
so resistance was out of the question. The four persons before named were 
then forcibly taken oiit of the ship. A further demand was made that the com- 
mander of the Trent should proceed on board the San Jacinto, but he said he 
would not go unless forcibly compelled likewise, and this demand was not in- 
sisted upon. 

Upon this statement Earl Russell remarks that it thus appears that certain 
individuals have been forcibly taken from on board a British vessel, the ship of 
a neuti'al power, while that vessel was pursuing a lawful and innocent voyage — 
ail act of violence which was an affront to the British flag and a violation of 
international law. 

Earl Russell next says that her Majesty's government, bearing in mind the 



4 CORRESPONDENCE. 

friendly relations which have long subsisted between Great Britain and the 
United States, are willing to believe that the naval officer who committed this 
aggression was not acting in compliance with any authority from his govern- 
ment, or that, if he conceived himself to be so authorized, he greatly misunder- 
stood the instructions which he had received. 

Earl Russell argues that the United States must be fully aware that the 
British government could not allow such an affront to the national honor to pass 
without full reparation, and they are willing to believe that it could not be the 
deliberate intention of the government of the United States unnecessarily to 
force into discussion between the two governments a question of so grave a char- 
acter, and with regard to which the whole British nation would be sure to enter- 
tain such unanimity of feeling. 

Earl Russell, resting upon the statement and the argument which I have thus 
recited, closes with saying that her Majesty's government trust that when this 
matter shall have been brought under the consideration of the government of the 
United States, it will, of its own accord, offer to the British government such 
redress as alone could satisfy the British nation, namely, the liberation of the 
four prisoners taken from the Trent, and their delivery to your lordship, in order 
that they may again be placed under British protection, and a suitable apology 
for the aggression wliich has been committed. Earl Russell finally instructs 
you to propose those terms to me, if I should not first offer them on the part of 
the government. 

This despatch has been submitted to the President. 

The British government has riglitly conjectured, what it is now my duty to 
state, that Captain Wilkes, in conceiving and executing the proceeding in ques- 
tion, acted upon his own suggestions of duty, without any direction or instruc- 
tion, or even foreknowledge of it, on the part of this government. No direc- 
tions had been given to him, or any other naval officer, to arrest the four persons 
named, or any of them, on the Trent or on any other British vessel, or on any 
other neutral vessel, at the place where it occurred or elsewhere. The British 
government will justly infer from these facts that the United States not only 
have had no purpose, but even no thought, of forcing into discussion the ques- 
tion which has arisen, or any other which could affect in any way the sensibili- 
ties of the British nation. 

It is true that a round shot was fired by the San Jacinto from her pivot-gun 
when the Trent was distantly approaching. But, as the facts have been reported 
to this government, the shot was nevertheless intentionally fired in a direction 
so obviously diveigent from the coiirse of the Trent as to be quite as harmless 
as a blank shot, ^^ bile it should be regarded as a signal. 

So also we learn that the Trent was not approaching the San Jacinto slowly 
■\\lien the shell was fired across her boAvs, but, on the contrary, the Trent was, 
or seemed to be, moving under a full head of steam, as if with a purpose to pass 
the San Jacinto. 

We are informed also that the boarding officer (Lieutenant Fairfax) did not 
board the Trent with a large armed guard, but he left his marines in his boat A\'hen 
he entered the Trent. He stated his instructions from Captain Wilkes to search 
for the four persons named, in a respectful and courteous, though decided man- 
ner, and he asked the captain of the Trent to show his passenger list, which 
was refused. The lieutenant, as we are informed, did not employ absolute force 
in transferring the passengers, but he used just so nnich as Avas necessary to 
satisfy the parties concerned that refusal or resistance would be imavailing. 

So, also, we are informed that the captain of the Trent was not at any time 
or in any way i-cquired to go on board the San Jacinto. 

These modifications of the case, as presented by Commander Williams, are 
based upon our official reports. 

I have now to remind your lordship of some facts which doubtlessly were 



CORRESPONDENCE. 5 

omitted by Earl Russell, with the very proper and becoming motive of allowing 
them to be brought into the case, on the part of the United States, in the way 
most satisfactory to this government. These facts are, that at the time the 
transaction occurred an insurrection Avas existing in the United States which 
this government Avas engaged in suppressing by the employment of land and 
naval forces ; that in regard to this domestic strife the United States considered 
Great Britain as a friendly power, Avhile she had assumed for herself the attitude 
of a neutral ; and that Spain was considered in the same light, and had assumed 
the same attitude as Great Britain. 

It had been settled by corresjiondence that the United States and Great 
Britain mutually recognized as applicable to this local strife these two articles of 
the declaration made by the Congress of Paris in 1856, namely, that the neutral 
or friendly flag should cover enemy's goods not contraband of war, and that 
neutral goods not contraband of war are not liable to capture under an enemy's 
flag. These exceptions of contraband from favor were a negative acceptance by 
the parties of the rule hitherto everywhere recognized as a part of the law of 
nations, that whatever is contraband is liable to capture and confiscation in all 
cases. 

James M. Mason and E. J. McFarland are citizens of the United States and 
residents of Virginia. John Slidell and George Eustis are citizens of the United 
States and residents of Louisiana. It was w(^ll known at Havana when these 
parties embarked in the Trent that James M. Mason was proceeding to England 
in tin; affected character of a minister plenipotentiary to the court of St. James, 
under a pretended commission from Jefferson Davis, who had assumed to be 
president of the insurrectionary party in the United States, and E. J. McFarland 
was going with him in a like unreal chai'acter of secretary of legation to the pre- 
tended mission. John Slidell, in similar circumstances, Avas going to Paris as a 
pretended minister to the Emperor of the French, and George Eustis was the 
chosen secretary of legation for that simulated misidon. The fact that these per- 
sons had assumed such characters has been since avowed by the same Jefferson 
Davis in a pretended message to an unlawful and insurrectionary Congress. It 
was, as we think, rightly presumed that these ministers bore pretended creden- 
tials and instructions, and such papers are in the law known as despatches. AVe 
are informed by our consul at Paris that these despatches, having escaped the 
search of the Trent, were actually conveyed and delivered to emissaries of the 
insurrection in England. Although it is not essential, yet it is proper to state, ^ 
as I do also upon information and belief, that the owner and agent, and all the 
oflicers of the Trent, including Commander Williams, had knowledge of the 
assumed characters and purposes of the persons before named when they em- 
barked on that vessel. 

Your lordship Avill now perceive that the case before us, instead of presenting 
a merely flagrant act of violence on the part of Captain Wilkes, as might well 
be inferred from the incomplete statement of it that went up to the British gov- 
ernment, was undertaken as a simple legal and customary belligerent proceeding ■/ 
by Captain Wilkes to arrest and capture a neutral vessel engaged in carrying 
contraband of war for the use and benefit of the insurgents. 

The question before us is, whether this proceeding was authorized by and con- 
ducted according to the law of nations. It involves the following inquiries : 

1st. Were the persons named and their supposed despatches contraband of 
war? 

2d. Might Captain Wilkes lawfully stop and search the Trent for these con- 
traband persons and despatches'? 

3d. Did he exercise that right in a hiwfiil and proper manner? 

4th. Having found the contraband persons on board and in presumed posses- 
sion of the contraband despatches, had he a right to capture the persons ? 



b CORRESPONDENCE. 

5tli. Did lie exercise that right of capture in the manner allowed and recog- 
nized by the law of nations ? 

If all these inqiiiries shall be resolved in the affirmative the British govern- 
ment will have no claim for i-eparation. 

I address myself to the first inquiry, namely, were the four persons mentioned, 
and their supposed despatches, contraband'? 

Maritime law so generally deals, as its professors say, in rem, that is with 
property, and so seldom with persons, that it seems a straining of the term con- 
traband to apply it to them. But persons, as well as property, may become con- 
traband, since the word means broadly " contrary to pi'oclamation, prohibited, 
illegal, unlawful." 

All writers and judges pronounce naval or military persons in the service of 
the enemy contraband. Yattel says war alloAvs us to cut off from an enemy all 
his resources, and to hinder him from sending ministers to solicit assistance. 
And Sir William Scott says you may stop the ambassador of your enemy on his 
passage. Despatches are not less clearly contraband, and the bearers or couriers 
who undertake to carry them fall under the same condemnation. 

A subtlety might be raised whether ])retended ministers of a usurping power, 
not recognized as legal by either the belligerent or the neutral, could be held to 
be contraband. But it would disappear on being subjected to what is the true 
test in all cases — namely, the spirit of the law. Sir William Scott, speaking of 
civil magistrates A\'ho are arrested and detained as contraband, says : 

" It appears to me on principle to be but reasonable that when it is of suffi- 
cient importance to the enemy that such persons shall be sent out on the public 
service at the public exjiense, it should afford equal ground of forfeiture against 
the vessel that may be let out for a purpose so intimately connected with the 
hostile operations." 

I trust that I have shown that the four persons who Avere taken from the 
Trent by Captain Wilkes, and their despatches, were contraband of war. 

The second inquiry is, whether Ca2)tain Wilkes had a right by the law of na- 
tions to detain and search the Trent. 

The Trent, though she carried mails, was a contract or merchant vessel — a 
common carrier for hire. Maritime law knows only three classes of vessels — 
vessels of war, revenue vessels, and merchant vessels. The Trent falls within 
the latter class. Whatever disputes have existed concerning a right of visita- 
tion or search in time of peace, none, it is supposed, has existed in modern times 
about the right of a belligerent in time of war to capture contraband in neutral 
and even friendly merchant vessels, and of the right of visitation and search, in 
order to determine whether they are neutral, and are documented as such accord- 
ing to the law of nations. 

I assume in the present case what, as I read British authorities, is regarded 
by Great Britain herself as true maritime law : That the circumstance that the 
Trent was proceeding from a neutral port to another neutral port does not 
modify the right of the belligerent captor. 

The third question is whether Captain Wilkes exercised the right of search 
in a lawful and proper manner. 

If any doubt hung over this point, as the case was presented in the state- 
ment of it adopted by the British government, I think it must have already 
passed away before the modifications of that statement which I have already 
submitted. 

I proceed to the fourth inquiry, namely: Having found the suspected contra- 
band of war on board the Trent, had Captain Wilkes a right to capture the 
same ? 

Such a capture is the chief, if not the only recognized, object of the per- 
mitted visitation and search. The principle of the lav/ is, that the belligerent 
exposed to danger may prevent the contraband persons or things from applying 



COERESPONDENCE. 1 

tliomsolves or being applied to the hostile uses or purposes designed. The law 
is so very liberal in this respect that when contraband is found on board a neu- 
tral vessel, not only is the contraband forfeited, but the vessel which is the 
vehicle of its passage or transportation, being tainted, also becomes contraband, 
and is subjected to capture and confiscation. 

Only the fifth question remains, namely: Did Captain Wilkes exercise the 
right of capturing the contraband in conformity with the law of nations 1 

It is just here that the difficulties of the case begin. What is the manner 
which the law of nations prescribes for disposing of the contraband when you 
have found and seized it on board of the neutral vessel ? The answer would be 
easily found if the question were what you shall do with the conti*aband vessel. 
You must take or send her into a convenient port, and subject her to a judicial 
prosecution there m admiralty, which will try and decide the questions of bel- 
ligerency, neutrality, contraband, and capture. 80, again, you would promptly 
find the same answer if the question were. What is the manner of proceeding 
prescribed by the law of nations in regard to the contraband, if it be property 
or things of material or pecuniary value I 

But the question here concerns the mode of procedure in regard, not to the 
vessel that was carrying the contraband, nor yet to contraband things which 
worked the forfeiture of the vessel, but to contraband persons. 

The books of law are dumb. Yet the question is as important as it is difli- 
cult. First, the belligerent captor has a right to prevent the contraband officer, 
.soldier, sailor, minister, messenger, or courier from proceeding in his unlawful 
voyage and reaching the destined scene of his injurious service. But, on the 
other hand, the person captured may be innocent — that is, he may not be con- 
traband. He, therefore, has a right to a foir trial of the accusation against him. 
The neutral State that has taken him under its flag is bound to protect him if 
lie is not contraband, and is therefore entitled to be satisfied upon that important 
question. The faith of that State is pledged to his safety, if innocent, as its 
justice is pledged to his surrender if he is really contraband. Here are conflict- 
ing claims, involving personal liberty, life, honor, and duty. Here are conflict- 
ing national claims, involving welfare, safety, honor, and empire. They require 
a tribunal and a trial. The ca{)tors and the captured are equals ; the neutral 
and the belligerent state are equals. 

While the law authorities were found silent, it was suggested at an early day 
by this government that you should take the captured persons into a convenient 
port, and institute judicial proceedings there to try the controversy. But only 
courts of admiralty have jurisdiction in maritime cases, and these courts have 
formulas to try only claims to contraband chattels, but none to try claims con- 
cerning contraband persons. The courts can entertain no proceedings and ren- 
der no judgment in favor of or against the alleged contraband men. 

It was replied all this Avas true ; but you can reach in those courts a decision 
which will have the moral weight of a judicial one by a circuitous proceeding. 
Convey the sus]>ected men, together with the suspected vessel, into port, and 
try there the question whether the vessel is contraband. You can prove it to be 
so by proving the suspected men to be contraband, and the court must then de- 
termine the vessel to be contraband. If the men are not contraband the vessel 
will escape condemnation. Still, there is no judgment for or against the cap- 
tured persons. But it was assumed that there would result from the determina- 
tion of the court concerning the vessel a legal certainty concerning the character 
of the men. 

This course of proceeding seemed open to many objections. It elevates the 
incidental inferior private interest into the proper place of the main paramount 
public one, and possibly it may make the fortunes, the safety, or the existence 
of a nation depend on the accidents of a merely personal and pecuniary litiga- 
tion. Moreover, when the judgment of the prize court upon the lawfulness of 



8 CORRESPONDENCE. 

the capture of the vessel is rendered, it really concludes nothing, and binds 
neither the belligerent state nor the neutral upon the great question of* the dis- 
position to be made of the captured contraband persons. That question is still 
to be really determined, if at all, by di})lomat-ic arrangement or by war. 

One may well express his surprise when told that the law of nations has fur- 
nished no more reasonable, practical, and perfect mode than this of determining 
questions of such grave import between sovereign powers. The regret we may 
feel on the occasion is nevertheless modified by the reflection that the diificulty 
is not altogether anomalous. Similar and equal deficiencies are found in every 
system of municipal law, especially in the system which exists in the greater 
portions of Great Britain and the United States. The title to personal property 
can hardly ever be resolved by a court without resorting to the fiction that the 
claimant has lost and the possessor has found it, and the title to real estate is 
disputed by real litigants under the names of imaginary persons. It must be 
confessed, however, that while all aggrieved nations demand, and all impartial 
ones concede, the need of some form of judicial process in determining the char- 
acters of contraband persons, no other form than the illogical and circuitous one 
thus described exists, nor has any other yet been suggested. Practically, there- 
fore, the choice is between that judicial remedy or no judicial remedy whatever. 
If there be no judicial remedy, the result is that the question must be deter- 
mined by the captor himself, on the deck of the prize vessel. Very grave 
objections arise against such a course. The captor is armed, the neutral is 
unarmed. The captor is interested, prejudiced, and perhaps violent; tlie neutral, 
if truly neutral, is disinterested, subdued, and helpless. The tribunal is irrespon- 
sible, while its judgment is carried into nistant execution. The captured party 
is compelled to submit, though bound by no legal, moral, or treaty obligation to 
acquiesce. Reparation is distant and problematical, and depends at last on the 
justice, magnanimity, or weakness of the state in whose behalf and by whose 
authority the capture was made. Out of these disputes reprisals and wars neces- 
sarily arise, and these are so frequent and destructive that it may Avell be doubted 
whether this form of remedy is not a greater social evil than all that could follow 
if the belligerent right of search were universally renomiced and abolished for- 
ever. But carry the case one step farther. What if the state that has made the 
capture unreasonably refuse to hear the complaint of the neutral or to redress it? 
In that case, the very act of capture would be an act of war — of war begun 
without notice, and possibly entirely without provocation. 

I think all miprejudiced minds will agree that, imperfect as the existing judi- 
cial remedy may be supposed to be, it would be, as a general practice, better to 
follow it than to adoj)t the summary one of leaving the decision with the captor, 
and relying upon diplomatic debates to review his decision, i'ractically, it is a 
question of chf)ice between laAv, with its imperfections and delays,'and M^ar, with 
its evils and desolations. Nor is it evtr to be forgotten that neutrality, honestly 
and justly preserved, is always the harbinger of peace, and therefore is the com- 
mon interest of nations, which is only saying that it is the interest of humanity 
itself. 

At the same time it is not to be denied that it may sometimes happen that the 
judicial remedy will become impossible, as by the shipwreck of the prize vessel, 
or other circumstances which excuse the captor from sending or taking her into 
port for confiscation. In such a case the right of the captor to the custody of 
the captured persons, and to dispose of them, if they are really contraband, so 
as to defeat their unlawful purposes, cannot reasonably be denied. What nile 
shall be applied in such a case 1 Clearly, the captor ought to be required to 
show that the failure of the judicial remedy results from circumstances beyond 
his control, and without his fault. Otherwise, he would be allowed to derive 
advantage from a wrongful act of his own. 

In the present case, Captain Wilkes, after capturing the contraband persons 



CORRESPOXDENCE. 9 

and making prize of the Trent in what seems to be a perfectly hiwful manner, 
instead of sending- her into port, released her from the capture, and permitted 
her to proceed with her whole cargo upon her voyage. He thus effectually pre- 
vented the judicial examination Avhich might otherwise have occurred. 

If, now, the capture of the contraband persons and the capture of the contra- 
Ijand vessel are to be regarded, not as two separate or distinct transactions under 
the law of nations, but as one transaction, one capture only, then it follows that 
the capture in this case was left unfinished, or was abandoned. Whether the 
United States have a right to retain the chief public benefits of it, namely, the 
custody of the captured persons on proving them to be contraband, will depend 
upon the preliminary question whether the leaving of the transaction unfinished 
was necessary, or whether it was unnecessary, and therefore voluntary. If it 
was necessary. Great Britain, as we suppose, must, of course, waive the defect, 
and the consequent failure of the judicial remedy. On the other hand, it is not 
seen how the United States can insist upon her waiver of that judicial remedy, 
if the defect of the capture resulted from an act of Captain AA^ilkes, which would 
be a fault on their own side. 

Captain Wilkes has presented to this government his reasons for releasing the 
Trent. " I forbore to seize her," he says, " in consequence of my being so re- 
duced in officers and ci-ew, and the derangement it would cause innocent persons, 
there being a large number of passengers who would have been put to great 
loss and inconvenience, as well as disappointment, from the interruption it Avould 
have caused them in not being able to join the steamer from St. Thomas to 
Europe. I therefore concluded to sacrifice the interest of my officers and ci"ew 
in tlie ])rize, and suffered her to proceed after the detention necessary to effect 
the transfer of those commissioners, considering I had obtained the important 
end I had in vicAv, and which affected the interest of our country and interrupted 
the action of that of the confederates." 

I shall consider, first, how these reasons ought to affect the action of this 
government ; and secondly, how they ought to be expected to affect the action 
of Great Britain. 

The reasons are satisfsictory to this government, so far as Captain Wilkes is 
concerned. It could not desire that the San Jacinto, her officers and crew, 
should be exposed to danger and loss by weakening their number to detach a 
prize crew to go on board the Trent. Still less could it disavow the humane 
motive of preventing inconveniences, losses, and perhaps disasters, to the several 
hundred innocent passengers found on board the prize vessel. Nor could this 
government perceive any ground for questioning the fact that these reasons, 
though apparently incongruous, did operate in the mind of Captain Wilkes and 
determine him to release the Trent. Human actions generally proceed upon 
mingled, and sometimes conflicting motives. He measured the sacrifices Avhich 
this decision Avould cost. It manifestly, however, did not occur to him that be- 
yond the sacrifice of the private interests (as he calls them) of his officers and 
crew, there might also possibly be a sacrifice even of the chief and public object 
of his capture, namely, ,the right of his government to the custody and dispo- 
sition of the captured persons. This government cannot censure him for this 
oversight. It confesses that the whole subject came unforeseen upon the govern- 
ment, as doubtless it did upon him. Its present convictions on the point in 
question are the result of deliberate examination and deduction now made, and 
not of any impressions previously formed. 

Nevertiaeless, the question now is, not whether Captain Wilkes is justified to 
his government in what he did, but what is the present view of the government 
as to the eftect of what he has done. Assuming now, for argument's sake only, 
that the release of the Trent, if voluntary, involved a waiver of the claim of 
the government to hold the cai)tured persons, the United States could in that 
case have no hesitation in saying that the act which has thus already been ap- 



10 CORRESPONDENCE. 

proved by tlic govcrumeiit mui^t be allowed to draw its legal consequence after 
it. It is of the very nature of a gift or a charity that the giver cannot, after 
the exercise of his benevolence is past, recall or modify its benefits. 

We are thus brought directly to the question whether we are entitled to re- 
gard the release of the Trent as involuntary, or whether we are obliged to con- 
sider that it was voluntary. Clearly: the release would have been involuntary 
had it been made solely upon the first ground assigned for it by Captain 
Wilkes, namely, a want of a sufiicient force to send the prize vessel into port 
for adjudication. It is not the duty of a captor to hazard his own vessel in 
order to secure a judicial examination to the captured party. No large prize 
crew, however, is legally necessary, for it is the duty of the captured party to 
acquiesce, and go willingly before the tribunal to whose jurisdiction it appeals. 
If the captured party indicate purposes to employ means of resistance which 
the captor cannot with probable safety to himself overcome, he may properly 
leave the vessel to go forward ; and neither she nor the State she represents can. 
ever afterwards justly object that the captor deprived her of the judicial remedy 
to Avhich she was entitled. 

But the second reason assigned by Captain Wilkes for releasing the Trent 
differs from the first. At best, therefore, it must be held that Captain Wilkes, 
as he explains himself, acted from combined sentiments of prudence and gene- 
rosity, and so that the release of the prize vessel was not strictly necessary or 
invohmtary. 

Secondly. How ought we to expect these explanations by Captain Wilkes of 
his reasons for leaving the capture incomplete to affect the action of the British 
government ? 

The observation upon this point which first occurs is, that Captain Wilkes's 
explanations were not made to the authorities of the captured vessel. If made 
known to them, they might have approved and taken the release upon the con- 
dition of Avaiving a judicial investigation of the Avhole transaction, or they might 
have refused to accept the release upon that condition. 

But the case is one not with them, but with the British government. If we 
claim that Great Britain ought not to insist that a judicial trial has been lost 
because we voluntarily released the offending vessel out of consideration for her 
innocent })assengers, I do not see how she is to be bound to acquiesce in the 
decision which was thus made by us without necessity on our part, and without 
knowledge of conditions or consent on her own. The question between Great 
Britain and ourselves thus stated would be a qiiestion not of right and of law, 
but of fjxvor to be conceded by her to us in return for favors shown bj^ us to 
her, of the value of Avhich favors on both sides we ourselves shall be the 
judge. Of course the United States could have no thought of raising such a 
question in any case. 

I trust that I have shown to the satisfaction of the British government, by a 
very simple and natural statement of the facts, and analysis of the law applica- 
ble to them, that this government has neither meditated, nor practiced, nor ap- 
proved any deliberate wrong in the transaction to Avhich they have called its 
attention ; and, on the contrary, that what has happened has been simply an 
inadvertency, consisting in a departure, by the naval officer, free from any 
wrongful motiA^e, from a rule uncertainly established, and probably by the seve- 
ral parties concerned either imperfectly understood or entirely uukiioAvn. For 
this error the British goA^ernment has a right to expect the same reparation that 
we, as an independent State, should expect from Great Britain or from any other 
friendly nation in a similar case. 

I have not been unaware that, in examining this question, I have fallen into 
an argument for A\^hat seems to be the British side of it against my oavu country. 
But I am relieved from all embarrassment on that subject. I had hardly fallen 
into that line of argument Avhen I discovered that I was really defending and 



CORRESPONDENCE. 1 1 

maintaining, not an exclusively British interest, but an old, honored, and cher- 
ished American cause, not ujion British authorities, but upon principles that 
constitute a large portion of the distinctive policy by which the United States 
have developed the resources of a continent, and thus becoming a considerable 
maritime power, have won the respect and confidence of many nations. These 
principles were laid down for us in 1804, by James Madison, wheu Secretary of 
State in the administration of Thomas Jefferson, in instructions given to James 
Monroe, our Minister to England. Although the case before him concerned a 
description of persons different from those who are incidentally the subjects of 
the present discussion, the groimd he assumed then was the same I now occupy, 
and the arguments by which he sustained himself upon it, have been an inspira- 
tion to me in preparing this reply. 

"Whenever," he says, ''property found in a neutral vessel is supposed to be 
liable on any ground to capture and condemnation, the rule in all cases is, that 
the question shall not be decided by the captor, but be carried before a legal 
tribunal, Avhei-e a regular trial may be had, and where the captor himself is 
liable to damages for an abuse of his power. Can it be reasonable, then, or just, 
that a belligerent commander who is thus restricted, and thus responsible in a 
case of mere property of trivial amount, should be permitted, without reciirring 
to any tribunal whatever, to examine the crew of a neutral vessel, to decide the 
important question of their respective allegiances, and to carry that decision into 
execution by forcing every individual he may choose into a service abhorrent to 
his feelings, cutting him off from his most tender connexions, exposing his mind 
aiul his person to the most humiliating discipline, and his life itself to the great- 
est danger. Reason, justice and humanity unite in protesting against so extrav- 
agant a proceeding." 

If I decide this case in favor of my own gov(>rnment, I must disavow its most ■ 
cherished })rinciples, and reverse and forever abandon its essential policy. The 
country cannot afford the sacrifice. If I maintain those principles, and adhere 
to that policy, I must surrender the case itself. It will be seen, therefore, that 
this government could not deny the justice of the claim presented to us in this 
respect upon its merits. AVe are asked to do to the British nation just what we 
have always insisted all nations ought to do to us. 

The claim of the I^ritish government is not made in a discourteous manner. 
This government, since its first organization, has never used more guarded lan- 
guage in a similar case. 

In coming to my conclusion I have not forgotten that, if the safety of this Union "■ 
required the detention of the captured persons, it would be the right and duty 
of this government to detain them. But the effectual check and waning propor- 
tions of the existing insurrection, as well as the comparative unimportance of the 
captured persons themselves, when dispassionately weighed, happily forbid me 
from resorting to that defence. 

Nor am I unaware that American citizens are not in any case to be unnece- 
sarily surrendered for any purpose into the keeping of a foreign State. Only the 
captured persons, however, or others who are interested in them, could justly 
raise a question on that ground. 

Nor have I been tempted at all by suggestions that cases might be found in ^ 
history where Great Britain refused to yield to other nations, and even to our- 
selv(^s, claims like that which is now before us. Those cases occurred when 
Great Britain, as well as the United States, was the home of generations, which, 
with all their peculiar interests and passions, have passed away. She could in 
no other way so effectually disavow any such injury as we think she does by 
assuming now as her own the ground upon which we then stood. It would tell 
little for our own claims to the character of a just and magnanimous people if we 
should so far consent to be guided by the laAv of retaliation as to lift up buried 



12 CORRESPONDENCE. 

injuries from tlieir graves to oppose against what national consistency and the 
national conscience compel us to regard as a claim intrinsically right. 

Putting behind me all suggestions of this kind, I prefer to express my satis- 
faction that, by the adjustment of the present case upon principles confessedly 
AmL'rican, and yet, as I trust, mutually satisfactory to both of the nations con- 
cerned, a question is finally and rightly settled between them, which, heretofore 
exhausting not only all forms of peaceful dscussion, but also the arbitrament of 
war itself, for more than half a century alienated the two countries from each 
other, and perplexed with fears and apprehensions all other nations. 

The four persons in question are now held in military custody at Fort War- 
ren, in the fState of Massachusetts. They will be cheerfully liberated. Your 
lordship wdl please indicate a time and place for receiving them. 

I avail myself of this occasion to offer to your lordship a renewed assurance 
of my very high consideration. 

WILLIAM H. SEWARD. 

The Right Honorable Lord Lyons, Sfc., Sfc., Sfc. 



1 



Mr. T/iouvencJ. to Mr. Mercier. 

[Translation] 

Administration of Foreign Affairs, 
Political Department, Paris, December 3, 1861. 

Sir : The arrest of Messrs. Mason and Slidell, on board the English packet 
Trent, by an American cruiser, has produced in France, if not the same emotion 
as in England, at least extreme astonishment and sensation. Public sentiment 
was at once engrossed with the lawfulness and the consequence of such an act, 
and the impression which has resulted from this has not been for an instant 
doubtful. 

The fact has appeared so much out of accordance with the ordinary rules of 
international law that it has chosen to throw the responsibility for it exclusively 
on the commander of the San Jacinto. It is not yet given to us to know 
whether this supposition is well founded ; and the government of the Emperor 
has, therefore, also had to examine the question raised by the taking away of 
the two passengers from the Trent. The desire to contribute to prevent a con- 
flict, perhaps imminent, between two powers for which it is animated by senti- 
ments equally friendly, and the duty to uphold, for the purpose of placing the 
rights of its own flag under shelter from any attack, certain principles, essential 
to the security of neutrals, have, after mature reflection, convinced it that it 
could not, under the circumstances, remain entirely silent. 

If, to our deep regret, the cabinet at Washington were disposed to approve 
the conduct of the commander of the San Jacinto, it would be either by consid- 
ering Messrs. Mason and Slidell as enemies, or as seeing in them nothing but 
rebels. In the one, as in the other case, there would be a forgetfulness, ex- 
tremely annoying, of principles upon which we have always found the United 
States in agreement with us. 

By what title in effect would the American cruiser, in the first case, have 
arrested Messrs. Mason and Slidell? The United States have admitted with 
us, in the treaties concluded between the two countries, that the freedom of the 
flag extends itself over the persons found on board, should they be enemies of 
one of the two parties, unless the question is of military people actually in the 
service of the enemy. IMessrs. Mason and Slidell were, therefore, by virtue of 
this pi'inciple, which we have never found any difficulty in causing to be inserted 
in our treaties of friendship and commerce, perfectly at liberty under the neutral 



CORRESPONDENCE. 1 3 

flag- of England. Doubtless it will not be pretended that tliey could be consid- " 
ered as contraband of war. That which constitutes contraband of war is not 
yet, it is true, exactly settled ; the limitations are not absolutely the same for 
all the powers ; but in what relates to persons, the special stipulations which 
are found in the treaties concerning military people define plainly the character 
of those who only can be seized upon by belligerents ; but there is no need to 
demonstrate that Messrs. Mason and Slidell could not be assimilated to persons 
in that category. There remains, therefore, to invoke, in explanation of their 
capture, only the pretext that they were the bearers of official despatches from 
the enemy ; but this is the moment to recall a circumstance which governs all 
this affair, and which renders the conduct of the American cruiser unjustifiable. 

The Trent was not destined to a point belonging to one of the belligerents. ^ 
She was carrying to a neutral country her cargo and her passengers ; and, more- 
over, it was in a neutral port that they were taken. If it were admissible that, 
under such conditions, the neutral flag does not completely cover the persons 
and merchandise it carries, its immunity would be nothing more than an idle 
word; at any moment the commerce and the navigation of third powers would 
have to suffer from their innocent and even their indirect relations with the one 
or the other of the belligerents. These last would no longer find themselves as 
havhig only the right to exact from the neutral entire impartiality, and to inter- 
dict all intermeddling on his part in acts of hostility. They would impose on 
his freedom of commerce and navigation restrictions which modern international 
law has refused to admit as legitimate; and we should, in a word, fall back 
upon vexatious practices, against which, in other epochs, no power has more earn- 
estly protested than the United States. 

If the cabinet of AVashington would only look on the two persons arrested 
as rebels, whom it is always lawful to seize, the question, to place it on other 
ground, could not be solved, however, in a sense in favor of the commander of 
the San Jacinto. There would be, in such case, misapprehension of the prin- ' 
ciple which makes a vessel a portion of the territory of the nation whose flag it 
bears, and violation of that immunity which prohibits a foreign sovereign, by 
consequence, from the exercise of his jurisdiction. It certainly is not necessary 
to recall to mind with what energy, under every circumstance, the government 
of the United States has maintained this immunity, and the right of asylum 
which is the consequence of it. 

Not wishing to enter upon a more deep discussion of the questions raised by 
the capture of Messrs. Mason and Slidell, I have said enough, I think, to settle 
the point that the cabinet of AYashington could not, without striking a blow at 
the principles which all neutral nations are alike interested in holding in respect, 
nor without taking the attitude of contradiction of its own course up to this 
time, give its approbation to the proceedings of the commander of the San Ja- 
cinto. In this state of things it evidently should not, according to our views, 
hesitate about the determination to be taken. 

Lord Lyons is already instructed to present the demand for satisfaction which 
the English cabinet is under the necessity of reducing to form, and which con- 
sists in the immediate I'elease of the persons taken from on board the Trent, 
and in sending explanations which may take from this act its offensive chai'acter 
toward the British flag. The federal government will be inspired by a just 
and exalted feeling in deferring to these requests. One would search in vain to 
what end, for what interest, it would hazard to provoke, by a different attitude, 
a rupture with Great Britain. 

For ourselves, we should see in that fact a deplorable complication, in every 
respect, of the difficulties with which the cabinet of AYashington has already to ' 
struggle, and a precedent of a nature seriously to disquiet all the powers which 
continue outside of the existing contest. We believe that Ave give evidence of 
loyal friendship for the cabinet of Washington by not permitting it to remain 



14 ^ COEKESPONDENCE. 

in ignorance, in this condition of things, of onr manner of regarding it. I re- 
quest you, therefore, sir, to seize the first occasion of opening yourself frankly 
to Mr. Seward, and, if he asks it, send him a copy of this desjjatch. 
Receive, sir, the assurance of my high consideration, 

THOUVENEL. 
Monsieur Henri Mkrcier, 

Minister of the Emperor at WasJiington. 



n 



Mr. Seward to Mr. Mcrcier. 



Department of State, 
Washington, December 27, 1861. 

Sir : I have submitted to the President the copy you were so good as to give 
me of the despatch addressed to you on the 3d of December instant, concerning 
the recent j)roceedings of Captain Wilkes, in arresting certain persons on board 
of the British contract mail steamer Trent. 

Before receiving the paper, however, the President had decided upon the dis- 
position to be made of the subject, which has caused so much anxiety in Europe. 
1'hat disposition of the subject, as I think, renders unnecessary any discus- 
sion of it, in reply to the comments of Mr. Thouvenel. I am permitted, however, 
to say that Mr. Thouvenel has not been in error in supposing, first, that the 
goA'^ernment of the United States has not acted in any spirit of disi"egard of the 
rights, or of the sensibilities, of the British nation, and that he is equally just 
in assuming that the United States would consistently vindicate, by their prac- 
tice on this occasion, the character they have so long maintained as an advocate 
of the most liberal principles concerning the rights of neutral States in mari- 
time war. 

When the French government «hall come to see at large the views of this 
government, and those of the government of Great Britain, on the subject now 
in question, and to comj)are them with the views expressed by Mr. Thouvenel 
on the part of France, it will probably perceive that, while it must be admitted 
that those three powers are equally impressed with the same desire for the 
establishment of principles favorable to neutral rights, there is, at the same time, 
not such an entire agreement concerning the application of those principles as 
is desirable to secure that important object. 

The government of the United States will be happy if the oecasion which 
has elicited this correspondence can be improved so as to secure a more definite 
agreement upon the whole subject by all maritime powers. 

You will assure Mr. Thouvenel that this government appreciates as well the 
frankness of his explanations, as the spirit of friendship and good will towards 
the United States in which they are expressed. 

It is a sincere pleasure for the United States to exchange assurances of a 
friendship Avhich had its origin in associations the most sacred in the history of 
both countries. 

I avail myself of this opportunity to renew to you, sir, the assurance of my 
high consideration. 

WILLIAM H. SEWARD. 

Mr. Henri Mercier, S^., Sfc., Sfc. 



CORRESPONDENCE. 15 

Lord Lyons to Mr. Seivard. 

Washington, December 27, 1S61. 

Sir: I have this niorning received the note which you did me the honor to 
address to me yesterday, in answer to Earl Rnssell's despatch of the SOtli No- 
vember last, relative to the removal of Mr. Mason, Mr. Slidell, Mr. McFarland 
and Mr. Lustis from the British mail packet " Trent " 

I will, without any loss of time,^ forward to her Majesty's government a copy 
ot the nnportant communication which you have made to me 

I will also without delay, do myself the honor to confer with you personally 
on he arrangements to be made for delivering the four gentlemen to me, in orde^ 
that they may be again placed under the protection of the British fla- 

I have the honor to be, with the highest consideration, sir, your moTt obedient 
humble servant, "^ "cuiLut 

Hon. William H. Seward, S^c, S^t., Sfc. 



